Opinion
Rehearing Denied Feb. 16, 1931
Hearing Granted by Supreme Court March 16, 1931.
Appeal from Superior Court, Santa Clara County; P.F. Gosbey, Judge.
Action by Benjamin Edwards and wife against C.M. Gullick and others. Judgment for plaintiffs, and defendants appeal.
Reversed.
COUNSEL
Leo J. McEnerney, of San Francisco, and Maurice J. Rankin, of San Jose, for appellant Gullick.
Bohnett, Hill & Campbell and L.H. Schellbach, all of San Jose, for respondents.
OPINION
PER CURIAM.
Action for personal injuries.
Plaintiff Huldah T. Edwards was riding as a guest of defendant C.M. Gullick in Gullick’s automobile when a collision occurred and she received the injuries of which she complains. The car was being driven at or near the intersection of Berryessa road and the Oakland highway just outside the city of San Jose. Gullick, who was operating the car, was alone in the driver’s seat. Plaintiff, her daughter, and Mrs. Gullick were riding in the rear seat. The Gullick car was proceeding in a southerly direction along the Oakland-San Jose highway, and before it reached the point of collision an automobile was observed turning into the highway from the Berryessa road, proceeding in a northerly direction directly in the path of the Gullick car. This automobile was driven by defendant Murotsune. Believing that a head-on collision was imminent, Gullick applied his brakes and swung to the left. Murotsune proceeding northerly collided with the Gullick car, striking it at or about the center. The accident occurred on the night of April 1, 1927, at about 8:30 o’clock. It was dark and the highway was wet and slippery from rain. Plaintiff alleged, and throughout the trial contended, that both Gullick and Murotsune were negligent in the operation of their machines. Evidence was offered to prove that Gullick was negligent in not having his car under control by reason of the speed he was traveling over a wet and slippery road and in turning to the left; that Murotsune was negligent in making too wide a turn into the road.
At the conclusion of the trial the jury rendered a verdict in favor of plaintiff and against defendant Gullick in the sum of $6,000. It further found in favor of defendant Murotsune.
Defendant Gullick appeals. The main ground relied upon for a reversal of the judgment is that the trial court committed prejudicial error in instructing the jury that the doctrine of res ipsa loquitur had application to the facts of the case. Upon this subject and at the request of plaintiff, the court instructed the jury as follows:
"You are instructed that while it is true as a general rule that mere proof of the occurrence of an accident raises no presumption of negligence, yet there it a class of cases where this principle does not govern— cases where the accident is such as in the ordinary course of things would not have happened if proper care had been used. In such cases the maxim res ipsa loquitur is held to apply, and it is presumed in the absence of explanation by the defendant that the accident arose from want of reasonable care.
"You are instructed that if you find from a preponderance of all of the evidence that the plaintiff, Huldah T. Edwards, without any contributory negligence on her part, was injured while she was a guest of, and riding in, the automobile operated and controlled exclusively by the defendant Gullick, and that the plaintiff, Huldah T. Edwards, was injured in an accident on account of the manner in which such automobile was operated, and the accident was such as in the ordinary course of things does not happen, if those having the operation and management of such automobile use proper care, then the law presumes that in so far as the defendant Gullick is concerned, he has been guilty of negligence. The plaintiffs have then made out a prima facie case against the defendant Gullick.
"The burden of proceeding is then shifted to the defendant Gullick, and if he would escape an adverse finding, he must adduce evidence to meet plaintiffs’ prima facie case. The legal presumption resulting from such accident and injury as I have just stated, if you find such facts to be the case, constitutes evidence of negligence against the defendant Gullick, which cannot be ignored by the jury unless satisfactorily rebutted."
It is claimed by appellant that the giving of this instruction under the facts of the case violates every principle of law. It is his contention that the doctrine of res ipsa loquitur never applies to a case where the injury arose through a collision between approaching vehicles in an action brought by a gratuitous passenger in one of the automobiles, against the operators of both vehicles, and in which plaintiff pleads and proves the reason of the accident, that is to say, the manner of the collision; that under such circumstances nothing is left for inference, and therefore there is no occasion for indulging in presumption.
It is further claimed that the rule precludes its application where, as here, plaintiff introduces evidence showing that any one of two instrumentalities in the hands of different persons could have caused the injury. It is pointed out that under the evidence the jury could have found that the injury was proximately caused through the negligence of defendant Murotsune by reason of his making too wide a curve at the time he turned into the road, or it could, as it did, find that the collision was caused solely through the negligence of Gullick, or as claimed by plaintiff, that it was caused by the concurrent negligence on the part of both defendants.
Numerous authorities have been cited to us illustrating the application of the doctrine of res ipsa loquitur as applied to different situations, but we need not be at pains to review these cases as the precise question here involved has been considered and passed upon in the very recent case of Keller v. Cushman (Cal.App.) 285 P. 399, where the authorities are extensively reviewed. It is there held that in a collision between two moving automobiles where either one of two defendants, wholly independent of each other, may be responsible for the injury complained of, the rule of res ipsa loquitur cannot be applied, for the reason that it is just as reasonable to infer that one was wholly responsible for the collision as to infer that the other was. See, also, Diamond v. Weyerhaeuser, 178 Cal. 540, 174 P. 38. To apply the presumption under such circumstances would be mere surmise or guesswork. The error in giving the instruction compels a reversal of the judgment. This conclusion renders unnecessary a discussion of other alleged errors.
The judgment in favor of plaintiffs and against defendant Gullick is therefore reversed.